CASE NO CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS TAMARA ROBISON, Appellant, vs.

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1 CASE NO CV ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 12 January 25 P9:06 Lisa Matz CLERK IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS TAMARA ROBISON, Appellant, vs. TEXAS HEALTH RESOURCES, INC. d/b/a TEXAS HEALTH PRESBYTERIAN HOSPITAL ALLEN a/k/a TEXAS HEALTH Appellee. ON APPEAL FROM THE 199 TH JUDICIAL DISTRICT COURT COLLIN COUNTY, TEXAS TRIAL COURT CAUSE NO APPELLANT S BRIEF Respectfully Submitted, RIOJAS LAW FIRM, P.C. Robert E. Riojas State Bar No Counsel for Appellant Tamara Robison 2035 Grant Ave. El Paso, Texas Telephone: (915) Telecopier: (915)

2 IDENTITY OF PARTIES AND COUNSEL PLAINITFF/APPELLANT: Tamara Robison COUNSEL FOR PLAINTIFF/APPELLANT: At Trial and Appeal: Robert E. Riojas State Bar No Grant Ave. El Paso, TX (915) (915) (facsimile) DEFENDANT/APPELLEE: Texas Health Resources, Inc. Texas Health Presbyterain Hospital Allen COUNSEL FOR DEFENDANTS/APPELLEES: Alan Campbell State Bar No Alan Campbell & Associates, P.C S. Lake Forest Dr., Suite 200 McKinney, Texas (972) (972) (facsimile) TRIAL JUDGE: Honorable Robert Dry ii

3 TABLE OF CONTENTS IDENTIFY OF PARTIES AND COUNSEL...ii INDEX OF AUTHORITIES...iv STATEMENT OF THE CASE....v ISSUES PRESENTED... vi ISSUE ONE: Did the trial court err in granting summary judgment and dismissing Robison s claims due to alleged misidentification when Robison sued d/b/a Texas Health Presbyterian Hospital Allen and not simply Texas Health Presbyterian Hospital Allen?...vi ISSUE TWO: Did the trial court err in granting THA s no-evidence motion for summary judgment on Robison s medical malpractice claims or did she at least present a scintilla of evidence in the form of uncontroverted medical expert testimony supporting her claims?.....vi STATEMENT OF FACTS....1 SUMMARY OF THE ARGUMENT..3 ARGUMENT AND AUTHORITIES The trial court erred is granting summary judgment because Robison original petition against d/b/a Texas Health Presbyterian Hospital Allen constituted actual suit against Texas Health Presbyterian Hospital Allen Regarding Robison s medical malpractice claim, the trial court erred in granting summary judgment because Robison did present uncontroverted medical expert testimony to support her negligence claims of THR and THPHA 7 PRAYER...8 CERTIFICATE OF SERVICE...8 APPENDIX Judgment iii

4 INDEX OF AUTHORITIES Cases: Continental Southern Lines, Inc. v. Hilland, 528 S.W.2d 828, 831 (Tex. 1975).6 Cummings v. HCA Health Services of Texas, Inc., (Tex. App. Houston [14 th Dist.] 1990, no writ)..4, 5, 6 Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (Tex. 2003)....4 Hernandez v. Furr s Supermarkets, 924 S.W.2d 193 (Tex. App. El Paso 1996, writ denied)..6 King Ranch v. Chapman, 118 S.W.3d 72, 751 (Tex. 2003) 4 Kindred v. Con/Chem, Inc., 650 S.W.2d 61 (Tex. 1983) Linan v. Rosales, 155 S.W.3d 298, 302 (Tex. App. El Paso 2004, pet. denied).. 7 Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002)....4 Wright v. Gifford-Hill & Co., Inc., 736 S.W.2d 828, (Tex. App. Waco 1987, writ ref'd n.r.e)...6 TEX. R. CIV. P. 166a 4 TEX. R. CIV. P. 166a(c)...4 iv

5 STATEMENT OF THE CASE Nature of the Case: This is a medical malpractice case. Trial Court Disposition: On May 11, 2011 Defendant Texas Health Resources filed its Rule 166a(c) and Rule 166a(i) motions for summary judgment contending that Texas Health Presbyterian Hospital Allen (THPHA) was a separate legal entity from THR and that Robison (although naming d/b/a Texas Health Presbyterian Hospital Allen) had not sued THPHA. On June 10, 2011 Robison filed her First Amended Petition naming Texas Health Presbyterian Hospital Allen, without the d/b/a, as defendant. On June 13, 2011 Robison filed her response to THR s Motion for Summary Judgment. On July 12, 2011 the trial court granted THR s motion for summary judgment. Robison, on August 11, 2011, then filed her Motion for New Trial, which was the trial court denied. This appeal follows. v

6 ISSUES PRESENTED ISSUE ONE: Did the trial court err in granting summary judgment and completely dismissing Robison s claims due to alleged misidentification when Robison sued d/b/a Texas Health Presbyterian Hospital Allen and not simply Texas Health Presbyterian Hospital Allen? ISSUE TWO: Did the trial court err in granting THR s no-evidence motion for summary judgment on Robison s medical malpractice claims or did she at least present a scintilla of evidence in the form of uncontroverted medical expert testimony supporting her claims? vi

7 CASE NO CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS TAMARA ROBISON, Appellant, vs. TEXAS HEALTH RESOURCES, INC. d/b/a TEXAS HEALTH PRESBYTERIAN HOSPITAL ALLEN a/k/a TEXAS HEALTH Appellee. TO THE HONORABLE JUSTICES OF THE FIFTH COURT OF APPEALS: Plaintiff/Appellant Tamara Robison appeals the trial court s summary judgment because by naming d/b/a Texas Health Presbyterian Hospital she did in fact sue Texas Health Presbyterian Hospital. Further, as to her medical malpractice claims, Robison appeals the trial court s summary judgment because she presented at least a scintilla of evidence supporting her medical malpractice claim in the form of uncontroverted medical testimony. STATEMENT OF FACTS This is a medical malpractice suit. It is based on Robison s assertion that the hospital at which she was a patient failed to follow the instructions of her surgeon who had ordered the use of mechanical prophylaxis (in the form of sequential compression devices) following her hernia repair surgery. On November 6, 2009 Plaintiff filed her Original Petition against Texas Healthcare 1

8 Resources, Inc. d/b/a Texas Health Presbyterian Hospital Allen a/k/a Texas Health Allen. Suit was served on the registered agent for THR, Charles W. Boes, who is the same registered agent (at the same address) as THPHA. CR After THR filed its motion for summary judgment, alleging that THPHA had not been properly made a party to the suit, on June 10, 2011 Robison filed her First Amended Petition naming Texas Health Presbyterian Hospital Allen (without the d/b/a) as defendant. Again, the registered agent for THPHA is the same registered agent for THR. CR A portion of the relevant medical reports identify the hospital which provided the care in question to Robison as: Presbyterian Hospital of Allen Texas Health Resources CR 133. One (of many) assumed names for THR is Texas Health Presbyterian Hospitals. Another is Texas Health. CR Despite this, THR contends in support of its motion for summary judgment that Robison has not properly sued THPHA, only THR; that THR is a completely separate legal entity and did not provide any care to Robison. THR asserts this despite THPHA being clearly identified in Plaintiff s Original Petition. THR further asserts this despite its admission that THR provides management services to THPHA as it, THPHA, is one of its member hospitals. With respect to Robison s medical malpractice claim, Robison presented evidence in the form of testimony from Dr. David Countryman that THPHA was under a duty to follow physician orders to provide Robison with sequential compression devices after her surgery, that the hospital breached that duty when it failed to do so, and that such breach was the proximate cause of Robison s injuries. CR

9 SUMMARY OF ARGUMENT The court below erred in granting summary judgment because: 1. THPHA has already been sued and is already a party to this suit. THPHA is already a named party in Robison s Original Petition. Suing THPHA as d/b/a Texas Health Presbyterian Hospital Allen constitutes suit on THPHA. THR admits that THPHA is the hospital that provided medical care to Robison during the time period in question. Alternatively, simultaneous with the filing of her summary judgment response, and before judgment by the trial court, Robison filed her Amended Petition withdrawing the d/b/a prefix before Texas Health Presbyterian Hospital Allen in place of Texas Healthcare Resources, Inc. d/b/a Texas Health Presbyterian Hospital Allen. 2. Robison has presented at least a scintilla of evidence to support her medical malpractice claim in the form of her expert s affidavit. The trial court erred in granting summary judgment because Robison presented at least a scintilla of evidence that THR breached its duty of care. 3

10 ARGUMENT AND AUTHORITIES The no-evidence summary judgment standard is well-known. In reviewing a noevidence summary judgment motion, we examine the record in the light most favorable to the nonmovant; if the nonmovant presents more than a scintilla of evidence supporting the disputed issue, summary judgment is improper. Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (Tex. 2003). Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. King Ranch v. Chapman, 118 S.W.3d 72, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63, 26 Tex. Sup. Ct. J. 383 (Tex. 1983)). More than a scintilla of evidence exists if it would allow reasonable and fairminded people to differ in their conclusions. A no-evidence summary judgment is improper and should be denied if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. TEX. R. CIV. P. 166a. With regard to Defendant s traditional motion for summary judgment, it is well established that in order to prevail on a motion for summary judgment, a party must conclusively establish the absence of any genuine issue of material fact and that the party is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). Under either summary judgment standard, the court is required to view the evidence in the light most favorable to the non-movant and indulge all inferences and resolve all doubts in the non-movant's favor. See Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). 1. The trial court erred is granting summary judgment because Robison original petition against d/b/a Texas Health Presbyterian Hospital Allen constituted actual suit against Texas Health Presbyterian Hospital Allen It has been held that suing an entity with the d/b/a prefix is the same as suing that entity directly. Thus, THPHA was sued by virtue of Plaintiff s Original Petition and it was error for 4

11 the trial court to dismiss Robison s suit against it. See Cummings v. HCA Health Services of Texas, Inc., (Tex. App.--Houston [14 th Dist.] 1990, no writ). THR contends that because of the manner of identifying THPHA in Plaintiff s Petition ( d/b/a of THR as opposed to without the d/b/a ), Robison only sued THR and not THPHA. This precise argument has been considered and rejected. In Cummings, a case also dealing with a suit originally filed against the treating hospital as a d/b/a of a separate legal entity, the entity which handled the administration of the actual hospital, it was stated: We believe this cause constitutes a suit involving an assumed name. We see no difference whether Tidelands General Hospital is sued "as a d/b/a" and alleged to be the assumed or common name of another corporate entity, or sued alone as the assumed or common name. 733 S.W.2d at 644, (citing Cohen v. C.H. Leavell & Co., Inc., 520 S.W.2d 793 (Tex. App.--El Paso 1975, no writ)). The court also noted that the two separate entities in had the same registered agents, like THR and THPRHA. Moreover, if Rule 28 mandates service of process on the assumed name within the limitations period, service on the assumed name, HCA d/b/a Tidelands General Hospital, constituted service on appellee doing business under the same name, since CT Corporation System was the registered agent for both HCA and appellee. See Northwest Sign Company v. Jack H. Brown & Company, Inc., 680 S.W.2d 808, 809, (Tex.1984) cert. denied 471 U.S. 1113, 105 S. Ct. 2353, 86 L.Ed.2d 255 (1985). Regardless of whether Rule 28 applies, we think there are material issues of fact whether appellee received notice of this lawsuit and whether it was misled or disadvantaged by its subsequent inclusion. Although Cummings was decided in the context of a limitations defense, its analysis is the same: suing an entity with the d/b/a prefix is the same as suing that entity directly, certainly where the registered agents are the same. Among other things, the Cummings court also noted that the managing hospital services entity, HCA, provided various services (to include payroll checks and employee benefits) to the hospital employees, Id. at 406, similar to what Defendant THR admits 5

12 providing to THPHA. 1 Therefore, Robison suing Texas Health Resources, Inc. d/b/a Texas Health Presbyterian Hospital Allen constitutes suit against THPHA and the trial court erred in granting summary judgment on this basis. Even assuming THPHA was not originally sued in this case, a contention which Robison denies, a fact issue exists as to whether THPHA had notice of this suit, has been prejudiced by delay, or was sufficiently related to the corporate defendant that was timely sued. Hernandez v. Furr s Supermarkets, 924 S.W.2d 193, (Tex. App.--El Paso 1996, writ denied). At a minimum, Robison has at the least raised a fact issue which prevents summary judgment because, as admitted by THR, there is such a closeness to THR and THPHA. There is clear evidence of a business relationship between HCA and Health Services as set forth by Hilland and Matthews. 528 S.W.2d 828; 682 S.W.2d 237. The evidence is also sufficient to raise a fact issue as to whether the management and operation of the parent and subsidiary are so assimilated that the subsidiary is simply a name or conduit through which the parent conducts its business. Wright v. Gifford-Hill & Co., Inc., 736 S.W.2d 828, (Tex. App.--Waco 1987, writ ref'd n.r.e). In such event, the corporate fiction is disregarded on the theory that the subsidiary is the alter ego of the parent, and suit against the subsidiary is the same as suit against the parent for the purpose of limitations. Id. Similarly, suit against the parent is the same as suit against the subsidiary. Cummings v. HCA Health Servs., Inc. 799 S.W.2d 403, 405 (Tex. App.--Houston 14 th Distr. 1990, no writ) It is admitted by THR that THPHA provided treatment to Plaintiff. This entity is now named as a party in this suit. Thus, the trial court erred in granting complete summary judgment. See Continental Southern Lines, Inc. v. Hilland, 528 S.W.2d 828, 831 (Tex. 1975): While the plaintiff made a mistake in her original petition as to the defendant that should have been sued, it is our opinion that she should be given, under the circumstances here present, an opportunity to prove that the Continental Southern Lines, Inc., was cognizant of the facts, was not misled, or placed at a disadvantage in obtaining relevant evidence to defend the suit. Price v. Anderson, 522 S.W.2d 690 (Tex.1975); Hallaway v. Thompson, 148 Tex. 471, 226 S.W.2d 816 (1950). In the present case, at a minimum, Robison has brought forward evidence creating at least a fact 1 Pg. 4 of Motion for Sum. Judg.: THR provides to THPHA payroll processing and employee benefit services. 6

13 issue regarding whether it has sued THPHA. 2. Regarding Robison s medical malpractice claim, the trial court erred in granting summary judgment because Robison did present uncontroverted medical expert testimony to support her negligence claims of THR and THPHA. Robison presented at least a scintilla of evidence that THR and THPHA breached the standard of care and that such breach was a proximate cause of Robison s injury or damages. The essential elements of a claim for medical malpractice are: (1) a duty by the physician to act according to a standard of care; (2) breach of that standard of care; (3) a causal connection between the alleged breach and the injury; and (4) injury or harm to the plaintiff. See Linan v. Rosales, 155 S.W.3d 298, 302 (Tex. App.-El Paso 2004, pet. denied). As attested to in the affidavit of Dr. Countryman, 2 Defendant THR and THPHA had a duty to act according to specific standards of care as it was a hospital providing medical care to Robison; such duty was breached when it failed to comply with Robison s treating doctor s orders to ensure the use of devices following her hernia surgery; and that such breach was a proximate cause of Robison s injury. Robison presented at least a scintilla of evidence to support her claim. More specifically, according to the uncontroverted affidavit of Dr. David Countryman, THR and THPHA had a responsibility to carry out the orders of physician members following Robison s surgery. According to Dr. Countryman, these are orders, not requests. Ex. 4. Based upon his review of the relevant medical records, following surgery Robison was supposed to be provided sequential compression devices. According to Dr. Countryman, THR and THPHA failed to do so. Because of this breach of the standard of care, according to Dr. Countryman, Robison suffered injuries and damages. According to Dr. Countryman, because of the actions of THR and THPHA Robison had to be readmitted on November 20, 2007 where tests showed that she had suffered a pulmonary embolism, the very complication that the Sequential Compression Devices were 2 According to his affidavit, Dr. Countryman is board certified in Surgery. CR 126 7

14 meant to prevent. CR 126. All of this testimony, uncontroverted by any expert opinion of Defendant, is at least a scintilla of evidence to support Robison s medical malpractice claims. PRAYER Defendant THR and THPHA has not established that it is entitled to summary judgment because Robison has presented at least a scintilla of evidence that she sued THPHA in her Original Petition. Suing an entity in as d/b/a is the same as suing that entity directly, especially where the other sued entity is closely related. Further, Robison has presented at least a scintilla of evidence to support her medical malpractice claim in the form of medical expert testimony. WHEREFORE, PREMISES CONSIDERED, Plaintiff and now Appellant Tamara Robison respectfully requests that be denied. Plaintiff further requests such other and further relief to which she may be entitled. Respectfully Submitted, RIOJAS LAW FIRM, P.C. /S/ ROBERT E. RIOJAS State Bar No Counsel for Appellant 2035 Grant Ave. El Paso, Texas Telephone: (915) Telecopier: (915) CERTIFICATE OF SERVICE I hereby certify that I have on this 25 th day of January, 2012 delivered a copy of the above-entitled instrument to the undersigned: Alan Campbell State Bar No Alan Campbell & Associates, P.C. 8

15 5900 S. Lake Forest Dr., Suite 200 McKinney, Texas /S/ ROBERT E. RIOJAS 9

16 APPENDIX 1. Trial Court Judgment 10

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